WIPO Update: Improved Text On Genetic Resources; Disclosure Still Undecided

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The second revision of a text on the protection of genetic resources was provided to the World Intellectual Property Organization country delegates this morning. The document, which has been streamlined by facilitators, contains a number of bracketed text, showing divergences which will require further work, including resolving how to track origin of genetic material in patent applications.

The consolidated document relating to intellectual property and genetic resources – Rev 2 [pdf] now consists of 12 pages instead of the 24 of the original consolidated document [pdf] with which delegates started the drafting process at the beginning of the 23rd session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) taking place from 4-8 February.

IGC Chair Wayne McCook said that, according to the agreed methodology, the plenary was to correct any obvious errors or omissions in the text, and that any additional comments and textual proposals would be recorded to appear in the full report of the session later on. At the end of the discussion, he said, the text will be noted and transmitted to the annual WIPO General Assembly in September. There will be an extended third IGC meeting this year “at which horizontal issues may be discussed,” he said.

The text will not be adopted in the current IGC session but simply noted and transmitted, McCook said. “It is negotiating text” that will be the subject of further work, “and that speaks for itself,” he said.

According to Ian Goss of Australia, one of three facilitators charged with the drafting of the text, a number of modifications were brought to the new revised text. In particular, they deleted the “drafting annex” which had gathered all text removed from the original version of the consolidated document to draft the first revision [pdf] of the document.

On disclosure of origin in patent applications, Article 3 still contains two major options: option 1 on disclosure protection with a list of formalities requirements for disclosure, and option 2 with no disclosure requirement and a defensive protection (for example with the establishment of databases).

Also in Article 3, the facilitators collapsed the part on “triggers” (factors that would trigger the requirements for disclosure), which contained two sub-options, into a tighter single paragraph 3.3, after having identified areas of convergence, Goss said. However, one option proposed by the Indigenous Caucus was removed.

The Indigenous Caucus option mentioned a trigger to disclosure when the patenting of genetic resources would cause harm to the interest of indigenous and local communities, he said. The option was removed because the facilitators met some difficulty identifying “how this could be practically implemented,” he said, adding that perhaps the option could be considered as a principle in the preamble. Indigenous Peoples participate in the expert group but their proposals must be supported by at least one country.

Regarding sanctions, the part now has three sub-options, one reflecting a more general statement, similar to the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, which provides flexibility regarding national implementation, Goss said, adding that this option is not prescriptive regarding the nature of sanctions or remedies.

The second sub-option incorporates minimum sanctions that should apply to all parties, he said, and the third sub-option establishes a maximum or a ceiling. The facilitators found it difficult to come up words providing some legal certainty and not creating ambiguity, he said.

Brackets, and More to Come

The new revised text has the merit of presenting a concise document, with clear articles and options, according to the majority of members, who thanked the facilitators for providing a workable document.

As it stands, the consolidated document contains a number of brackets, indicating areas of divergence, and during their interventions, countries asked that more brackets be added, as they felt they could not agree with the drafted text.

Some developed countries, such as the European Union members, asked that the chairman’s note that appeared in the original document be added to the second revision. Part of the chairman’s note read: This text represents the results, at the conclusion of the IGC’s 20th session, in accordance with the mandate of the WIPO General Assemblies (contained in WO/GA/40/7). It represents a work in progress and is without prejudice to the positions of the participants.”

The European Union said the document should stipulate that it represents work in progress without prejudice to the final outcome of the instrument. Other developed countries, such as Canada and the United States, supported this view while it was opposed by a number of developing countries such as Algeria on behalf of the African Group.

Developed countries have been in favour of a non-binding instrument, while developing countries are intent on reaching agreement on a legally binding international treaty protecting their genetic resources against misappropriation.

Canada, which co-authored several joint proposals with Japan, South Korea and the United States, presented yesterday to the plenary, asked that the reference to a negotiating document on page 2 of the revised text not preclude other texts from being considered.

South Africa said there was a need to de-link the consolidated text from the joint proposals presented yesterday, as the mandate of the IGC stipulated working on the consolidated text only.

The joint proposals have been noted by the plenary.

Catherine Saez may be reached at info@ip-watch.ch.

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